Federal Court Rules: Chicken Sandwich Not Protected By Copyright

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You may recall that we recently tested various burger recipes sent in by readers. What if I took one of those recipes, slapped the name “Morranwich” on it and made it the basis of a billion-dollar burger empire? While the reader whose recipe I used for the sandwich might be really upset, they couldn’t make a copyright claim against Morranwich Worldwide (a division of Cyber Dynamics Systems Corporation) because, as precious as a sandwich recipe might be, it’s not copyrightable. Yesterday, a federal appeals reminded everyone of this in a ruling involving a copyright and trademark claim against a fast food chicken chain. The seeds of this case were planted back in 1987, when a man named Norberto started working for South American Restaurant Corporation [SARCO], a franchisee and operator of Church’s Chicken locations in Puerto Rico. At some point, Norberto suggested an addition to the Church’s menu. After some testing, the new chicken sandwich, dubbed the “Pechu Sandwich” by Norberto, eventually went on sale locally in Dec. 1991. In 1999, Puerto Rican trademark officials granted a registration for that name. By 2005, that registration had been conferred on SARCO, who filed and received a federal trademark registration for “Pechusandwich” with the U.S. Patent and Trademark Office. Norberto sued SARCO for a percentage of the profits it has earned from the sandwich he claims to have created. He alleges that the company violated Section 38 of the Lanham Act by committing fraud upon the USPTO in the procurement of the Pechu Sandwich trademark. He subsequently argued in appeal that SARCO had violated his copyright by allegedly stealing the recipe and name for the sandwich. But as a panel for the U.S. Court of Appeals For the First Circuit notes in its opinion [PDF] that you can’t really claim copyright on a sandwich. First, recipes and food products are not among the eight copyrightable categories enumerated by Congress (literary works; musical works, including lyrics; dramatic works, including musical score; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works). Additionally, previous courts have held that a recipe is a “mere listing of ingredients” that don’t merit copyright protection, and that they “are functional directions to achieve a result” and therefore not copyrightable. “A recipe — or any instructions — listing the combination of chicken, lettuce, tomato, cheese, and mayonnaise on a bun to create a sandwich is quite plainly not a copyrightable work,” reads the court’s opinion. And while you can trademark a name like “Pechu Sandwich,” the court explains that copyright protection does not extend to “words and short phrases, such as names, titles, and slogans.” As for Norberto’s claim that SARCO committed fraud in obtaining the Pechu trademark, the court says that the plaintiff “simply fails to sufficiently allege that any false statement exists,” that Norberto “merely offers conjecture about SARCO’s actions and intentions,” without providing any facts to back up his contention that SARCO “intentionally, willfully, fraudulently and maliciously procured” the trademark in question. [h/t: @markjkings]

1. by Chris Morran
2. via Consumerist

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